Appeal details
Counselvise Citation
204720514 RSA 2010
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 4 month(s) 28 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
09-11-2012
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
A
Next Hearing Date
31-10-2012
Assessment Year
2007-2008
Appeal Filed On
11-06-2010
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD A BENCH BEFORE: SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARA T, JUDICIAL MEMBER THE ACIT, B.K. CIRCLE, PALANPUR (APPELLANT) VS. THE BANASKANTHA DIST. CO. OP MILK PRODUCERS UNION LTD. PALANPUR. (RESPONDENT) PAN NO.AAAAB0575E REVENUE BY : SRI A. TIRKEY, SR. D.R. ASSESSEE BY : SRI SULABH PADSHAH, A.R. DATE OF HEARING : 31-10-2012 DATE OF PRONOUNCEMENT : 09-11-2012 / ORDER PER : KUL BHARAT, JUDICIAL MEMBER:- THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER LD. COMMISSIONER OF INCOME TAX (APPEALS)-XV AHMEDABAD, DATED 13 TH APRIL 2010. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- I.T.A. NO 2047/AHD/2010 A.Y.:-2007-08 ITA NO. 2047/AHD/2010 A.Y. 2007-08 PAGE NO. THE ACIT VS. THE BANASKANTHA DIST. CO-OP. MILK 2 1. THE LD. COMMISSIONER OF INCOME-TAX(A)-XV, AHMED ABAD HAS ERRED IN LAW AND ON FACTS IN ALLOWING DEDUCTION OF RS. 7124640/- U/S 80IB OF THE ACT IN RESPECT OF BANAS- II PLANT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. COMMISSIONER OF INCOME-TAX (A)-XV, AHMEDABAD OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 3. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE L D. COMMISSIONER OF INCOME-TAX(A)-XV, AHMEDABAD MAY BE SET-ASIDE AND TH AT OF THE ASSESSING OFFICER BE RESTORED. 2. THE FACTS IN BRIEF ARE THAT THE CASE OF THE ASSE SSEE FOR ASSESSMENT YEAR 2007-08 WAS SELECTED FOR SCRUTINY ASSESSMENT AND TH E ASSESSMENT U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED T O AS THE ACT) WAS FRAMED WHEREBY THE CLAIM OF THE ASSESSEE U/S 80IB WAS REJE CTED AND THE SAME WAS ADDED BACK TO THE INCOME OF THE ASSESSEE. AGAINST THIS ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) WHO AFTER CON SIDERING THE SUBMISSIONS OF THE ASSESSEE AND RELYING ON THE DECISION OF THE HONBLE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE ASSESSEES OWN CASE I N ITA NO. 1362/AHD/2009 ALLOWED THE CLAIM OF THE ASSESSEE. A GAINST THIS ORDER, THE REVENUE IS BEFORE US. 3. LD. SR. D.R. SRI, A TIRKEY, STRONGLY PLACED REL IANCE ON THE ASSESSMENT ORDER. ON THE CONTRARY, LEARNED COUNSEL FOR THE AS SESSEE POINTED OUT THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF HONBL E CO-ORDINATE BENCH RENDERED IN ASSESSEES OWN CASE IN ITA NO. 1362/AHD /2009. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS PERUSED THE MATERIAL AVAILABLE ON RECORD AND THE JUDGMENT CITED. WE FIND THAT THE HO NBLE CO-ORDINATE BENCH IN ITA NO. 1362/AHD/2009 PERTAINING TO A.Y. 2006-07 IN ASSESSEES OWN CASE HAS DECIDED THE ISSUE IN CONTROVERSY AS UNDER: ITA NO. 2047/AHD/2010 A.Y. 2007-08 PAGE NO. THE ACIT VS. THE BANASKANTHA DIST. CO-OP. MILK 3 LEARNED AUTHORIZED REPRESENTATIVE OF THE ASSESSES FILED A COPY OF THE ORDER OF THE TRIBUNAL PASSED IN ASSESSEE'S O WN CASE FOR ASSESSMENT YEAR 2004-05 IN ITA NOS 1163 AND 1188/AH D/2008, ORDER DATED 7-11-2003 AND SUBMITTED THAT THE APPEAL OF TH E REVENUE WAS DISMISSED AND THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) WAS CONFIRMED BY THE TRIBUNAL ALLOWING DE DUCTION U/S 80IB BY OBSERVING AS UNDER:- '11 AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE FIN D THAT THE ASSESSEE IS STATED TO HAVE SATISFIED THE REQUISITE CONDITIONS FOR CLAIMING DEDUCTION U/S 80IB OF THE ACT IN RESPECT O F BANAS-IL DAIRY UNIT. THE DEDUCTION IS CLAIMED FOR PRODUCTION OF BUTTER & MILK POWER. SEPARATE FIGURES FOR PRODUCTION OF EACH SUCH ITEM IS AVAILABLE SEPARATE IDENTIFIABLE EXPENSES ARE PRO VIDED THERE AGAINST. MERE TECHNICALITIES LIKE CERTAIN INFORMATI ON IN AUDIT REPORT OR FILING AUDIT REPORT AFTER FILING RETURN O F INCOME, BUT BEFORE COMPLETION OF ASSESSMENT PROCEEDINGS ARE NOT TO COME IN A WAY OF CLAIMING DEDUCTION U/S 80IB OF THE ACT. SI NCE NO ERROR IN THE ORDER OF LD, CIT(A) IS POINTED OUT, THE MATT ER NEED NOT BE RESTORED BACK AS IT WILL AMOUNT TO GIVING A SECOND INNINGS TO THE AO WHICH IS NOT PERMISSIBLE. SINCE NO INFIRMITY IN THE ORDER OF LD. CIT(A) IS FOUND, WE UPHOLD THE ORDER OF LD. CIT (A) IN THIS REGARD. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE MATERIALS AVAILABLE ON RE CORD. IN THE INSTANT CASE THE ASSESSEE CLAIMED DEDUCTION OF RS.3 ,31,37,355/- U/S 80IB IN THE RETURN OF INCOME BEING THE AMOUNT OF 10 0% INCOME DERIVED FROM BANAS-11 DAIRY EXPANSION PLANT. THE AS SESSEE VIDE ITS LETTER DATED 25-11-2008 REVISED ITS CLAIM FOR DEDUC TION U/S 80IB TO RS.82,84,339/- IN PLACE OF RS.3,31,37,355/- AND ACC ORDING TO THE ASSESSEE IT WAS ENTITLED FOR DEDUCTION AT THE RATE OF 25% NOT 100% OF THE PROFIT OF BANAS-11 DAIRY EXPANSION PLANT. THE L EARNED ASSESSING OFFICER DISALLOWED THE CLAIM OF RS.82,84,339/- ALSO BY OBSERVING AS STATED ABOVE IN THIS ORDER. ON APPEAL, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) DELETED THE DISALLOWANCE OF RS . 82,84 , 339/- FOR THE REASONS ALSO QUOTED ABOVE IN THIS ORDER. WE- F IND THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) DELETE D THE ITA NO. 2047/AHD/2010 A.Y. 2007-08 PAGE NO. THE ACIT VS. THE BANASKANTHA DIST. CO-OP. MILK 4 DISALLOWANCE OF DEDUCTION BY FOLLOWING THE ORDER OF THE TRIBUNAL PASSED IN THE CASE OF THE ASSESSEE ITSELF FOR ASSES SMENT YEAR 2004-05. THE LEARNED DEPARTMENTAL REPRESENTATIVE COULD NOT POINT OUT ANY GOOD REASON AS TO WHY THE ABOVE ORDER OF THE TRIBUNAL PASSED IN THE CASE OF THE ASSESSEE ITSELF FOR THE ASSESSMENT YEAR 2004- 05 SHOULD NOT HAVE BEEN FOLLOWED BY THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) FOR THE ASSESS MENT YEAR UNDER APPEAL ALSO. HOWEVER, WE FIND THAT IN THE ORDER OF ASSESSMENT THE LEARNED ASSESSING OFFICER OBSERVED THAT FROM THE PE RUSAL OF PROFIT AND LOSS ACCOUNT OF DAIRY BUSINESS AND CATTLE F EED BUSINESS OF THE ASSESSEE THAT CERTAIN COMMON EXPENSES WERE DEB ITED IN DAIRY BUSINESS WHICH WERE ALSO ATTRIBUTABLE FOR CATTLE F EED BUSINESS ALSO. FROM THIS THE LEARNED ASSESSING OFFICER CONCLUDED T HAT AN APPORTIONMENT OF SUCH JOINT OR COMMON EXPENSES THE LOSS OF ASSESSEE IN THE CATTLE FEED BUSINESS WILL INCREASE AND THE P ROFIT IN DAIRY BUSINESS WILL BE REDUCED. IN OUR CONSIDERED OPINION , THE ABOVE CONCLUSION OF THE LEARNED ASSESSING OFFICER IS CLEA RLY UNSUSTAINABLE. IN OUR VIEW, WHEN A PART OF THE EXPENSES WHICH WERE DEBITED BY THE ASSESSEE IN DAIRY BUSINESS IS APPORTIONED TO THE CA TTLE FEED BUSINESS, THEN THE PROFIT OF THE DAIRY BUSINESS WILL INCREASE AND THE LEARNED ASSESSING OFFICER WRONGLY HELD THAT THE SAME WI LL BE REDUCED. AS THE PROFIT OF THE DAIRY BUSINESS WILL INCR EASE ON ACCEPTANCE OF THE FINDING OF THE LEARNED OFFICER AS RECORDED IN T HE ORDER OF ASSESSMENT, IT CANNOT BE HELD THAT THE ASSESSEE HAS CLAIMED HIGHER AMOUNT OF DEDUCTION U/S 80IB BY CLAIMING THE SA ME AT RS 82,84,339/- RATHER AS PER THIS FINDING IT HAS C LAIMED DEDUCTION FOR THE LESSER AMOUNT BY DEBITING THE COMMON EXPENSES A GAINST THE ELIGIBLE PROFITS. AS THE ISSUE OF ELIGIBILITY O F DEDUCTION U/S S01B OF THE ACT IN RESPECT OF PROFIT DERIVED FROM BA NAS-11 DAIRY EXPANSION PLANT HAS ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THIS TRIBUNAL IN THE CASE OF THE ASSESSES FOR AS SESSMENT YEAR 2004- 05, WE FIND NO GOOD REASON TO INTERFERE WITH THE OR DER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS). THUS, THIS GR OUND OF APPEAL OF THE REVENUE IS DISMISSED. 5. SINCE THE REVENUE HAS NOT POINTED OUT AS TO HOW THE DECISION OF THE HONBLE CO-ORDINATE BENCH RENDERED IN ITA NO. 1362/ AHD/2009 A.Y. 2006- 07 IN ASSESSEES OWN CASE IS NOT APPLICABLE ON THE FACTS OF THE YEAR UNDER ITA NO. 2047/AHD/2010 A.Y. 2007-08 PAGE NO. THE ACIT VS. THE BANASKANTHA DIST. CO-OP. MILK 5 CONSIDERATION. IN THIS VIEW OF THE MATTER, RESPECT FULLY, FOLLOWING THE ORDER OF THE HONBLE CO-ORDINATE BENCH RENDERED IN ITA NO. 1 362/AHD/2009 IN ASSESSEES OWN CASE RELATING TO THE ASSESSMENT YEAR 2006-2007, WE DO NOT FIND ANY INFIRMITY INTO THE ORDER OF THE LD. CIT(A) , CONSEQUENTLY, THIS GROUND OF THE REVENUES APPEAL IS REJECTED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (A.K. GARODIA) (KUL BHARAT) ACCOUNTANT MEMBER JU DICIAL MEMBER AHMEDABAD : DATED 09/11/2012 AK / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. / CONCERNED CIT 4. - / CIT (A) 5. , ! , '# / DR, ITAT, AHMEDABAD 6. $% &' / GUARD FILE. BY ORDER/ , ( / ' ) ! , '#
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